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Dros Rape – what the law says about reporting identities of rapists

According to IOL #NotInMyNameSA has vowed to shut down the Dros restuarant in Silverton if its management failed to make good on its promise to cover the medical costs of a seven year old who was raped at their premises.

The alleged perpetrator was a 20-year-old man who followed her into the toilet.

According to News24 a video of the suspect soon emerged, showing him in the bathroom covered in blood.

When questioned he claimed to be using the bathroom to relieve himself.

The suspect made a brief appearance in court on Tuesday but he hasn’t pleaded yet.

Government has asked that people not share the original, uncensored video.

Amongst those disgusted by the news was Economic Freedom Fighters’ leader Julius Malema, who retweeted a picture identifying the suspect, with the original poster claiming, “Media can’t show his face cause his ass is White.”

My Take

There is a reason why the media aren’t showing the rapist’s face, and why the government asked people not to share the video of him in the bathroom.

And it isn’t that the suspect is white – it is the law.

Until a suspect has pleaded in a court of law you cannot name or identify them. If you do then you are guilty of defamation.

Okyerebea Ampofo-Anti, a partner in the dispute resolution department at Webber Wentzel who specialises in media law, wrote a piece for the Mail and Guardian last year about the #Metoo movement and how it intersected with South African law.

Here’s the operative bit:

  • There is no statutory restriction on naming a person who is accused of sexual assault before they have been charged. Although there is no statutory restriction in place, journalists and members of the public must remember that they could be sued for defamation if they repeat (which includes retweeting and sharing material via social media) unverified allegations that a person is guilty of sexual assault.

  • Once criminal charges have been laid, one has to be careful about the timing around naming the accused because of the provisions of the Criminal Procedure Act discussed above, which make it illegal to publish any information relating to the charge before the accused has both appeared in court and pleaded to the charge.

According to The South African Malema could face legal trouble for retweeting the identity of the suspect but personally I doubt it. I think somebody would have to bring the charge forward, and I can’t see that actually happening here.

That said, to say it is because the suspect is white – that is just claptrap designed to sow further racial divisions. That might be very nice if you’re a politician, but it doesn’t really do anything to help the victim.

Recently I criticised Thabo Mbeki for his defensiveness around South Africa’s rape epidemic when he was president, when he tried to paint the people reporting on it as being racially motivated.

Which is to say this sort of rhetoric has been used in the past to avoid dealing with the problem at hand – which isn’t the race of the perpetrator, it is this crime that is being perpetrated far too often within our nation.

When we allow politicians to racialise issues, all progress on those issues stops. We don’t want to stop what little progress we could make on rape.

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